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CAN TRANSFER OF GOVERNMENT EMPLOYEES BE CHALLENGED IN COURT ?

Can Transfer be Challenged in Courts?       

 In India, Government employees are considered as people who are leading the lifestyle of a king. But, in reality, they do suffer a lot of problems in the course of their employment. One of such problems is “transfer “. Some transfers may be genuine while others might not. A genuine transfer order is one which is passed on administrative grounds by competent authority without violating the existing laws.   Any transfer order passed on any personal vengeance or under influence of any political background is not acceptable by law unless it is proved to be made on administrative grounds to cope with the administrative exigencies ( National Hydroelectric Power Corporation Ltd. V. Shri Bhagwan ).

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Before approaching the court, one has to approach the appropriate tribunal and represent his/her transfer and one should be given an opportunity of being heard. The court cannot directly interfere in such matter unless the matter is previously adjudicated by the appropriate tribunal ( CAT/SAT ). In general, a transfer order can be challenged in the court only on the following grounds viz., when the transfer order is

 a) issued by an incompetent authority,

 b) violating the statutory provisions and

 c) malafide and arbitrary.

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The Apex court, again and again has held in various cases that, transfer is an incidental to service, in fact, a condition of service.Place and post can never be claimed as a matter of choice by the public servant. Government employees wherever posted is bound to work in the interest of public administration ( Masilamani Jeevaraj V. The Regional Manager ). Transfer is not a matter of right. So, one could not either claim transfer or refuse to get transferred. In Bhagwan Das Mittal V. State of Rajasthan and Ors,the Rajasthan HC held that Government circulars have no binding force of law. So, any writ petition challenging the transfer made on violation of the provisions of any Government circulars is liable to be dismissed.

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        The Madhya Pradesh HC has held in Madan Kumar Athya V. State of MPthat, personal inconvenience is not a ground to challenge a transfer, if it does not run contrary to the statutory provisions.The facts of the case were one Mr. Madan Kumar was transferred to a station which is 130 Kms away from his residence. He stated in his WP that he has his ailing old age mother depended on him and he himself has undergone some medical treatment so that the transfer caused severe personal inconvenience to him and so he challenged the transfer. But, the court held in contrary.

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        In Registrar General, HC of Judicature of Madras V. Perachi And Others, a Sheristadar, a post of higher cadre was transferred to another district as a PA to a judge. He challenged his transfer order on the ground that it affected his seniority where he was likely to get promoted if he would have not given a transfer order.It was held that though he was transferred to a comparatively lower cadre, he will not lose his seniority and his chances of promotion will no longer get affected.Hence, the petition challenging the transfer was dismissed by the Apex court.

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Exception:-As stated above, transfers made on administrative grounds by competent authority without violating the existing laws cannot be challenged.However,preference is given to physically challenged persons to choose their stations of service or they will be given stations that are near to their place of residence.Therefore, reasonable physical deformity pleaded with proper medical statements can be a valid defense to challenge transfer. Other issues might not be considered as a valid defense, since transfer is a part of the service of Government employment.

 

This post is written by Amritha Kannan of SASTRA Institute, Thanjavur, Chennai.

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